Project Innovations Pty Limited v The Hills Shire Council

Representation: Counsel:
J Smith (Applicant)
S Kondilios (Solicitor) (Respondent)
Solicitors:
Storey & Gough Lawyers (Applicant)
Hall and Willcox (Respondent)

File Number(s): 2024/328641

Publication restriction: No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by The Hills Shire Council, of the Applicant’s request to modify development consent DA1598/2019/ZD for the subdivision of one lot into five community title rural residential lots and one community association lot (rural cluster) at 564 Cliftonville Road, Lower Portland.

2. The modification application, DA1598/2019/ZD/A, seeks modifications to conditions of consent to reduce the number of trees removed (Condition 10), reduce the number of credits required for biodiversity offsetting (Condition 16), and remove the building platform restriction (Condition 62).

3. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court arranged a conciliation conference under s 34 (1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 March and 3 April 2025. I presided over the conciliation conference.

5. After the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and modifying the consent in accordance with the modification application. As part of this agreement, the Council consents to the applicant amending the modification application to adequately respond to their contentions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to modify the development consent that was originally granted consent by the Court.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following points.

8. Pursuant to s 4.55(2)(a) of the EPA Act, I must be satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted. In this regard I note that the development remains a five-lot subdivision, with no change to the layout, environmental impacts, or use of the original development consent. From this I am satisfied that the development, as modified, will be substantially the same as the development for which consent was originally granted.

9. No requirement for concurrence or further consultation is required pursuant to EPA Act s 4.55(2)(b).

10. The modification application was notified from 7 July and 31 July 2023 in accordance with Council’s Community Participation Plan and EPA Act s 4.55(2)(c). No submissions were received in this time.

11. Section 7.17 of the Biodiversity and Conservation Act 2016 provides that Div 4 of Pt 7 applies to modification. Accordingly, a Biodiversity Development Assessment Report (BDAR) has been submitted with the amended application, which demonstrates that the development as modified will not increase the impact on biodiversity values.

12. Finally, based on the information contained in the Statement of Environmental Effects, the amended plans and the parties’ joint submission on jurisdictional prerequisites, I am satisfied that all matters referred to in the EPA Act s 4.15(1), as are of relevance to the development the subject of this application, have been considered, as required by EPA Act s 4.55(2) and that all jurisdictional prerequisites have been met.

13. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. The Court notes:

15. The Hills Shire Council, as the relevant consent authority has agreed, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application DA1598/019/ZD/A the subject of these proceedings with the inclusion of the following plans:

(a) DWG No 1 dated 8 April 2025 prepared by Taylor Surveying drawing 1846-2 Sheet 1 of 1 dated October 2019, amended by Lower Portland No. 34 Pty Ltd dated 8 April 2025. (b) Tree Removal Plan identified as Figure 7 Vegetation Mapping & Habitats Features dated 27/3/2025 V2_5, Biodiversity Development Assessment Report, Enviro Ecology.

15. The Court orders:

16. The appeal is upheld.

17. Development consent DA1598/2019/ZD granted on 25 June 2020 for subdivision creating five community title rural residential lots and one association lot (rural cluster) is modified by Modification Application DA1598/2019/ZD/A in the terms set out in Annexure A.

18. Development consent DA1598/2019/ZD as modified by the Court is Annexure B.

E Washington

Acting Commissioner of the Court

Annexure A (163 KB, pdf)

Annexure B (239 KB, pdf)

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